partly dissenting OPINION OF JUDGE casadevall

(Translation)

1. I do not share the majority’s view that it was necessary for the Court to depart from precedent and hold in the instant case that it had to rule also on the complaint based on an alleged violation of Article 13, that there had been no effective remedy, when it had already found a violation of Article 6 § 1 because a reasonable time had been exceeded in the same proceedings.

2. Given, in particular, the wording of Article 13, which is as succinct as it is broad, there is certainly nothing to prevent its being applied to the various aspects of the “right to a court” embodied in Article 6 § 1 [1] . I have no difficulty with that. On the other hand, the complications – of all kinds – that this new case-law is likely to entail for the Court, for the member States and, above all, for the only persons intended to benefit from the protection afforded by the Convention, the applicants , make me fear that the cure is worse than the disease, for the following reasons.

3. The first relates to the grounds given for departing from precedent. I can accept, in theory, the reasoning in paragraph 147 of the judgment, according to which there is neither overlap nor absorption where, as in the present case, the alleged violation that the individual wishes to bring before a national authority is a violation of the right to trial within a reasonable time. However, the remainder of the reasoning, based on the continuing accumulation of length-of-proceedings cases before the Court, is of no legal interest [2] .

In July 1999, in the Italian length-of-proceedings cases cited in paragraph 148 of the judgment, the Court did, indeed, rule that the accumulation of identical breaches reflected a continuing situation that had still not been remedied and in respect of which litigants had no domestic remedy. That accumulation of breaches led it to hold that there was a practice incompatible with the Convention.

It is true that since then there have been more and more findings of violations based solely or principally on the excessive length of proceedings in a good many member States. But by the terms of the Convention, the Court has a duty to consider and try applications as submitted to it by litigants. To state, as the Court does in paragraph 149, that the time has now come, on account of the number of applications relating to length of proceedings, to examine the complaint under Article 13 taken separately smacks, in my view, more of expediency than of law.

4. Moreover, it is not certain that the level of judicial protection afforded at European level by the Convention will be strengthened merely because the Court will now be able to find a double violation – firstly on account of the excessive length of the proceedings and secondly on account of the lack of any effective remedy to complain about it. The finding of an additional violation of Article 13 is not in itself such as to overcome the endemic structural problems besetting the judicial systems of certain member States, any more than the finding that there is a practice incompatible with the Convention has been. It will not make it easier to reduce the Court’s caseload, at least not in the medium term.

5. The aim of this finding of a violation of Article 13 is to confront the States with their responsibilities, in accordance with the subsidiarity principle, and to encourage them to establish in their domestic legal systems an effective remedy that will enable litigants to complain of excessive length of proceedings. Supposing such a remedy is instituted, I can hardly see how the structural problem of the unreasonable length of proceedings could be remedied by the obligation to first exhaust, as required by Article 35 of the Convention, an additional remedy designed to make it possible to complain about the length of proceedings.

There is nothing to warrant an assumption that such an action would be heard within a more reasonable time than the main proceedings. Nor does anything warrant an assumption that the main proceedings would be speeded up as a result of bringing such an action. Ultimately only the litigant would suffer the consequences of this situation .

6. I also think that after this departure from precedent other issues will necessarily arise on which the Court will have to rule. According to the Court’s settled case-law, for instance, the remedy required by Article 13 must be “‘effective’ in practice as well as in law” and likely to afford the person concerned “appropriate relief” [3] . However, a mere finding in the domestic courts of a breach of the obligation to rule within a reasonable time – made after such a remedy has been exhausted – and even, in an appropriate case, the award of compensation for non-pecuniary damage, will not make it possible to describe the remedy as effective if the main proceedings are still pending .

In that event, several years later, the applicant will be compelled to submit his application to the Court, relying on a violation of Article 6 § 1 and also, in this instance rightly, of Article 13. The effectiveness of human ‑ rights protection will not thereby be strengthened, quite the contrary.

7. Although the Court reiterates [4] that the States “are afforded some discretion as to the manner in which they provide the relief required by Article 13”, and although what is meant is “a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in [the particular context]” [5] , the requirement of effectiveness means that such a remedy must be provided by an authority distinct – and independent – from the one that is ruling on the merits of the case since it is the latter that is responsible for the failure to rule within a reasonable time and therefore for the violation alleged by the applicant. Furthermore, the decisions of such an authority should be legally binding, since otherwise the requirement of effectiveness would not be satisfied [6] .

8. Lastly, I should like to point out that in an appreciable number of cases the Court has found a violation of the right to a hearing within a reasonable time where the length of proceedings has been excessive in member States’ supreme courts [7] . To whom should litigants turn either to have proceedings expedited or to secure compensation for loss resulting from a violation of Article 6 § 1 where the violation has been committed by the highest court in the land?

9. For all the above reasons, I am not able to concur with the majority inasmuch as they consider it necessary to hold that there has been a violation of Article 13 of the Convention. To my mind, it would have sufficed in the instant case to find a violation of Article 6 § 1.

[1] . Paragraph 151 of the judgment.

[2] . “… in the light of the continuing accumulation of applications before [the Court] …” (paragraph 148 of the judgment).

[3] . See, among other authorities, the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI.

[4] . Paragraph 154 of the judgment.

[5] . Paragraph 151 of the judgment.

[6] . A petition to a Parliamentary Commissioner who has no power to grant redress is not an effective remedy (see the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 43, § 115).

[7] . See, for example, the Ruiz-Mateos v. Spain judgment of 23 June 1993, Series A no. 262, p. 23, § 51; and, more recently, Gast and Popp v. Germany , no. 29357/95, ECHR 2000-II; Savvidou v. Greece , no. 38704/97, 1 August 2000, unreported; or Guisset v. France , no. 33933/96, ECHR 2000-IX.